FILED

United States Court of Appeals

Tenth Circuit

June 17, 2008

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MESHWERKS, INC., a Utah

corporation,
Plaintiff - Appellant,
v.
TOYOTA MOTOR SALES U.S.A.,
INC., a California corporation;
GRACE & WILD, a Michigan
corporation doing business as Division
X; 3D RECON, a Utah limited liability
company; SAATCHI & SAATCHI
NORTH AMERICA, a California
corporation,

No. 06-4222

Defendants - Appellees.

Appeal from the United States District Court

for the District of Utah
(D.C. No. 2:06-CV-97-TC)

Lewis M. Francis (Jerome Romero with him on the briefs) of Jones Waldo
Holbrook & McDonough PC, Salt Lake City, Utah, for Plaintiff-Appellant.
Brian D. Wassom of Honigman Miller Schwartz and Cohn LLP, Detroit, Michigan
(Michael A. Lisi of Honigman Miller Schwartz and Cohn LLP, Detroit, Michigan
and Arthur B. Berger of Ray Quinney & Nebeker P.C., Salt Lake City, Utah, with
him on the brief), for Defendants-Appellees Toyota Motor Sales, Inc., Grace &
Wild, Inc. and Saatchi & Saatchi North America, Inc.
Stephen Quesenberry and J. Bryan Quesenberry of Hill, Johnson & Schmutz,
Provo, Utah, for Defendant-Appellee 3D Recon, LLC.

Before BRISCOE, GORSUCH, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.

This case calls on us to apply copyright principles to a relatively new

technology: digital modeling. Meshwerks insists that, contrary to the district
courts summary judgment determination, its digital models of Toyota cars and
trucks are sufficiently original to warrant copyright protection. Meshwerks
models, which form the base layers of computerized substitutes for product
photographs in advertising, are unadorned, digital wire-frames of Toyotas
vehicles. While fully appreciating that digital media present new frontiers for
copyrightable creative expression, in this particular case the uncontested facts
reveal that Meshwerks models owe their designs and origins to Toyota and
deliberately do not include anything original of their own; accordingly, we hold
that Meshwerks models are not protected by copyright and affirm.
I
A
In 2003, and in conjunction with Saatchi & Saatchi, its advertising agency,
Toyota began work on its model-year 2004 advertising campaign. Saatchi and
Toyota agreed that the campaign would involve, among other things, digital
models of Toyotas vehicles for use on Toyotas website and in various other

-2-

media. These digital models have substantial advantages over the product
photographs for which they substitute. With a few clicks of a computer mouse,
the advertiser can change the color of the car, its surroundings, and even edit its
physical dimensions to portray changes in vehicle styling; before this innovation,
advertisers had to conduct new photo shoots of whole fleets of vehicles each time
the manufacturer made even a small design change to a car or truck.
To supply these digital models, Saatchi and Toyota hired Grace & Wild,
Inc. (G&W). In turn, G&W subcontracted with Meshwerks to assist with two
initial aspects of the project digitization and modeling. Digitizing involves
collecting physical data points from the object to be portrayed. In the case of
Toyotas vehicles, Meshwerks took copious measurements of Toyotas vehicles
by covering each car, truck, and van with a grid of tape and running an articulated
arm tethered to a computer over the vehicle to measure all points of intersection
in the grid. Based on these measurements, modeling software then generated a
digital image resembling a wire-frame model. In other words, the vehicles data
points (measurements) were mapped onto a computerized grid and the modeling
software connected the dots to create a wire frame of each vehicle.
At this point, however, the on-screen image remained far from perfect and
manual modeling was necessary. Meshwerks personnel fine-tuned or, as the
company prefers it, sculpted, the lines on screen to resemble each vehicle as
closely as possible. Approximately 90 percent of the data points contained in
-3-

each final model, Meshwerks represents, were the result not of the first-step
measurement process, but of the skill and effort its digital sculptors manually
expended at the second step. For example, some areas of detail, such as wheels,
headlights, door handles, and the Toyota emblem, could not be accurately
measured using current technology; those features had to be added at the second
sculpting stage, and Meshwerks had to recreate those features as realistically as
possible by hand, based on photographs. Even for areas that were measured,
Meshwerks faced the challenge of converting measurements taken of a threedimensional car into a two-dimensional computer representation; to achieve this,
its modelers had to sculpt, or move, data points to achieve a visually convincing
result. The purpose and product of these processes, after nearly 80 to 100 hours
of effort per vehicle, were two-dimensional wire-frame depictions of Toyotas
vehicles that appeared three-dimensional on screen, but were utterly unadorned
lacking color, shading, and other details. Attached to this opinion as Appendix A
are sample screen-prints of one of Meshwerks digital wire-frame models.
With Meshwerks wire-frame products in hand, G&W then manipulated the
computerized models by, first, adding detail, the result of which appeared on
screen as a tightening of the wire frames, as though significantly more wires
had been added to the frames, or as though they were made of a finer mesh. Next,
G&W digitally applied color, texture, lighting, and animation for use in Toyotas
advertisements. An example of G&Ws work product is attached as Appendix B
-4-

to this opinion. G&Ws digital models were then sent to Saatchi to be employed
in a number of advertisements prepared by Saatchi and Toyota in various print,
online, and television media. 1
B
This dispute arose because, according to Meshwerks, it contracted with
G&W for only a single use of its models as part of one Toyota television
commercial and neither Toyota nor any other defendant was allowed to use the
digital models created from Meshwerks wire-frames in other advertisements.
Thus, Meshwerks contends defendants improperly in violation of copyright laws
as well as the parties agreement reused and redistributed the models created by
Meshwerks in a host of other media. In support of the allegations that defendants
misappropriated its intellectual property, Meshwerks points to the fact that it
sought and received copyright registration on its wire-frame models. 2
In due course, defendants moved for summary judgment on the theory that
Meshwerks wire-frame models lacked sufficient originality to be protected by
copyright. Specifically, defendants argued that any original expression found in

G&W also shared one of Meshwerks original wire-frames with

defendant 3D Recon, one of Meshwerks competitors hired to work on a
subsequent phase of Toyotas advertising campaign.
2

An initial suit for copyright infringement was dismissed without

prejudice because Meshwerks had not obtained registrations for all of the
copyrights it claimed defendants infringed. Meshwerks subsequently registered
the copyrights at issue and filed this suit.
-5-

Meshwerks products was attributable to the Toyota designers who conceived of

the vehicle designs in the first place; accordingly, defendants use of the models
could not give rise to a claim for copyright infringement.
The district court agreed. It found that the wire-frame models were merely
copies of Toyotas products, not sufficiently original to warrant copyright
protection, and stressed that Meshwerks intent was to replicate, as exactly as
possible, the image of certain Toyota vehicles. D. Ct. Op. at 8. Because there
was no valid copyright, there could be no infringement, and, having granted
summary judgment on the federal copyright claim, the district court declined to
exercise supplemental jurisdiction over Meshwerks state-law contract claim.
Today, Meshwerks asks us to reverse and hold its digital, wire-frame models
sufficiently original to warrant copyright protection. 3
II
To make a case for copyright infringement, Meshwerks must show (1) it
owns a valid copyright, and (2) defendants copied constituent elements of the
work that are original to Meshwerks. Autoskill Inc. v. Natl Educ. Support Sys.,
Inc., 994 F.2d 1476, 1487 (10th Cir. 1993). Our inquiry in this case focuses on
the first of these tests that is, on the question whether Meshwerks held a valid

On appeal, we have not been asked to address Meshwerks contract

claim, though if the holding on its federal claim were to be reversed, the existence
of supplemental jurisdiction to review the contract claim of course would have to
be reconsidered.
-6-

copyright in its digital wire-frame models. Because Meshwerks obtained

registration certificates for its models from the Copyright Office, we presume that
it holds a valid copyright. See 17 U.S.C. 410(c); Palladium Music, Inc. v.
EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005). At the same time,
defendants may overcome this presumption by presenting evidence and legal
argument sufficient to establish that the works in question were not entitled to
copyright protection. Palladium Music, Inc., 398 F.3d at 1196. Because this case
comes to us on summary judgment, we review the question whether Meshwerks
holds a valid copyright de novo and will affirm the district courts judgment only
if, viewing all of the facts in the light most favorable to Meshwerks, we are able
to conclude that there is no genuine issue as to any material fact and that
[defendants are] entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 4
A
The Constitution authorizes Congress [t]o promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries. U.S. Const. art. I,

There is some debate over whether the question of copyrightability is a

pure question of law and thus one for the court, or a mixed question of law and
fact and thus one involving potential jury questions in the presence of materially
disputed facts. See Gaiman v. McFarlane, 360 F.3d 644, 648-49 (7th Cir. 2004)
(discussing the dispute). Our court has not spoken on the matter, but neither do
we have need to do so today as this case comes to us on summary judgment, and
we cannot, of course, grant such a motion if we discern any material dispute of
fact in the record before us.
-7-

 8, cl. 8. The Supreme Court has emphasized that the power afforded by this
provision namely, to give an author exclusive authority over a work rests in
part on a presuppos[ition] that the work contains a degree of originality.
Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991). Congress
has recognized this same point, extending copyright protection only to original
works of authorship . . . . 17 U.S.C. 102 (emphasis added). Originality, thus,
is said to be [t]he sine qua non of copyright. Feist, 499 U.S. at 345. That is,
not every work of authorship, let alone every aspect of every work of authorship,
is protectable in copyright; only original expressions are protected. This
constitutional and statutory principle seeks to strike a delicate balance
rewarding (and thus encouraging) those who contribute something new to society,
while also allowing (and thus stimulating) others to build upon, add to, and
develop those creations. The copyright power is said to exist primarily not to
reward the labor of authors, but to promote the progress of science and the useful
arts. . . . To this end, copyright assures authors the right to their original
expression, but encourages others to build freely upon the ideas and information
conveyed by a work. Id. at 349-50 (internal quotation and citations omitted).
What exactly does it mean for a work to qualify as original? In Feist, the
Supreme Court clarified that the work must be independently created by the
author (as opposed to copied from other works). Id. at 345; see also
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (the work for
-8-

which copyright protection is sought must owe[] its origin to the putative
copyright holder) (internal quotation omitted). In addition, the work must
possesses at least some minimal degree of creativity, Feist, 499 U.S. at 345; see
also William F. Patry, Patry on Copyright 3:27 (both independent creation and
a minimal degree of creativity are required), though this is not to say that to
count as containing a minimal degree of creativity a work must have aesthetic
merit in the minds of judges (arguably not always the most artistically discerning
lot). As the Court explained through Justice Holmes, even a very modest grade
of art has in it something irreducible, which is one mans alone. That something
he may copyright . . . . Bleistein v. Donaldson Lithographing Co., 188 U.S. 239,
250 (1903); see also Feist, 499 U.S. at 345 (all thats needed is some creative
spark, no matter how crude, humble, or obvious). 5
The parties focus most of their energy in this case on the question whether
Meshwerks models qualify as independent creations, as opposed to copies of

The two pertinent concepts independent creation and minimal creativity

are intertwined and overlap, at least to some degree: After all, if something
qualifies as an independent creation (that is, it is more than a copy) wont it also
usually betray some minimal degree of creativity? Still, though the independent
test imputed by the creativity requirement is low, it does exist. Feist, 499 U.S. at
345, 362. It is thus not the case, as some interpreted Judge Learned Hand to say
when he observed that no photograph, however simple, can be unaffected by the
personal influence of the author, and no two will be absolutely alike, that
photographs (or any other works, for that matter) are per se protectable. See SHL
Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 309 (S.D.N.Y. 2000)
(quoting Jewelers Circular Publg Co. v. Key-Stone Publg Co., 274 F. 932, 934
(S.D.N.Y. 1921) (Hand, J.)).
-9-

Toyotas handiwork. But what can be said, at least based on received copyright
doctrine, to distinguish an independent creation from a copy? And how might
that doctrine apply in an age of virtual worlds and digital media that seek to
mimic the real world, but often do so in ways that undoubtedly qualify as
(highly) original? While there is little authority explaining how our received
principles of copyright law apply to the relatively new digital medium before us,
some lessons may be discerned from how the law coped in an earlier time with a
previous revolution in technology: photography.
As Judge Pauley admirably recounted in SHL Imaging, Inc. v. Artisan
House, Inc., photography was initially met by critics with a degree of skepticism:
a photograph, some said, copies everything and explains nothing, and it was
debated whether a camera could do anything more than merely record the physical
world. 117 F. Supp. 2d 301, 307 (S.D.N.Y 2000) (internal quotation omitted).
These largely aesthetic debates migrated into legal territory when Oscar Wilde
toured the United States in the 1880s and sought out Napoleon Sarony for a series
of publicity photographs to promote the event. 6 Burrow-Giles, a lithography firm,

The tour brought Wilde within what is now our territorial jurisdiction in
1882, including to the bustling silver mining town of Leadville, Colorado, where
Wilde descended into Horace Tabors Matchless Mine and later claimed, I read
[assembled miners] passages from the autobiography of Benvenuto Cellini and
they seemed much delighted. I was reproved by my hearers for not having
brought him with me. I explained that he had been dead for some little time
which elicited the enquiry Who shot him? Oscar Wilde, Impressions of
America 31 (Keystone Press 1906).
-10-

quickly copied one of Saronys photos and sold 85,000 prints without the
photographers permission. Burrow-Giles defended its conduct on the ground that
the photograph was a mere mechanical reproduction of the physical features of
Wilde and thus not copyrightable. Burrow-Giles, 111 U.S. at 59. Recognizing
that Oscar Wildes inimitable visage does not belong, or owe its origins to any
photographer, the Supreme Court noted that photographs may well sometimes
lack originality and are thus not per se copyrightable. Id. (the ordinary
production of a photograph may involve no protection in copyright). At the
same time, the Court held, a copyright may be had to the extent a photograph
involves posing the said Oscar Wilde in front of the camera, selecting and
arranging the costume, draperies, and other various accessories in said
photograph, arranging the subject so as to present graceful outlines, arranging and
disposing the light and shade, suggesting and evoking the desired expression . . .
. Id. at 60. Accordingly, the Court indicated, photographs are copyrightable, if
only to the extent of their original depiction of the subject. Wildes image is not
copyrightable; but to the extent a photograph reflects the photographers decisions
regarding pose, positioning, background, lighting, shading, and the like, those
elements can be said to owe their origins to the photographer, making the
photograph copyrightable, at least to that extent.
As the Court more recently explained in Feist, the operative distinction is
between, on the one hand, ideas or facts in the world, items that cannot be
-11-

copyrighted, and a particular expression of that idea or fact, that can be. This
principle, known as the idea/expression or fact/expression dichotomy, applies to
all works of authorship. As applied to a factual compilation, the particular
matter at issue in Feist, assuming the absence of original written expression,
only the compilers selection and arrangement may be protected; the raw facts
may be copied at will. This result is neither unfair nor unfortunate. It is the
means by which copyright advances the progress of science and art. Feist, 499
U.S. at 350; see also id. at 351 (In no event may copyright extend to the facts
themselves.). So, in the case of photographs, for which Meshwerks digital
models were designed to serve as practically advantageous substitutes, authors are
entitled to copyright protection only for the incremental contribution, SHL
Imaging, Inc., 117 F. Supp. 2d at 311 (internal quotation omitted), represented by
their interpretation or expression of the objects of their attention.
B
Applying these principles, evolved in the realm of photography, to the new
medium that has come to supplement and even in some ways to supplant it, we
think Meshwerks models are not so much independent creations as (very good)
copies of Toyotas vehicles. In reaching this conclusion we rely on (1) an
objective assessment of the particular models before us and (2) the parties
purpose in creating them. All the same, we do not doubt for an instant that the

-12-

digital medium before us, like photography before it, can be employed to create
vivid new expressions fully protectable in copyright.
1
Key to our evaluation of this case is the fact that Meshwerks digital wireframe computer models depict Toyotas vehicles without any individualizing
features: they are untouched by a digital paintbrush; they are not depicted in
front of a palm tree, whizzing down the open road, or climbing up a
mountainside. Put another way, Meshwerks models depict nothing more than
unadorned Toyota vehicles the car as car. See Appendix A. And the
unequivocal lesson from Feist is that works are not copyrightable to the extent
they do not involve any expression apart from the raw facts in the world. As
Professor Nimmer has commented in connection with the predecessor technology
of photography, [a]s applied to a photograph of a pre-existing product, that
bedrock principle [of originality] means that the photographer manifestly cannot
claim to have originated the matter depicted therein . . . . The upshot is that the
photographer is entitled to copyright solely based on lighting, angle, perspective,
and the other ingredients that traditionally apply to that art-form. Nimmer on
Copyright 3.03[C][3]. It seems to us that exactly the same holds true with the
digital medium now before us: the facts in this case unambiguously show that
Meshwerks did not make any decisions regarding lighting, shading, the
background in front of which a vehicle would be posed, the angle at which to
-13-

pose it, or the like in short, its models reflect none of the decisions that can
make depictions of things or facts in the world, whether Oscar Wilde or a Toyota
Camry, new expressions subject to copyright protection.
The primary case on which Meshwerks asks us to rely actually reinforces
this conclusion. In Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000)
(Skyy I), the Ninth Circuit was faced with a suit brought by a plaintiff
photographer who alleged that the defendant had infringed on his commercial
photographs of a Skyy-brand vodka bottle. The court held that the vodka bottle,
as a utilitarian object, a fact in the world, was not itself (at least usually)
copyrightable. Id. at 1080 (citing 17 U.S.C. 101). At the same time, the court
recognized that plaintiffs photos reflected decisions regarding lighting, shading,
angle, background, and so forth, id. at 1078, and to the extent plaintiffs
photographs reflected such original contributions the court held they could be
copyrighted. In so holding, the Ninth Circuit reversed a district courts dismissal
of the case and remanded the matter for further proceedings, and Meshwerks
argues this analysis controls the outcome of its case.
But Skyy I tells only half the story. The case soon returned to the court of
appeals, and the court held that the defendants photos, which differed in terms of
angle, lighting, shadow, reflection, and background, did not infringe on the
plaintiffs copyrights. Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 765 (9th Cir.
2003) (Skyy II). Why? The only constant between the plaintiffs photographs and
-14-

the defendants photographs was the bottle itself, id. at 766, and an accurate
portrayal of the unadorned bottle could not be copyrighted. Facts and ideas are
the publics domain and open to exploitation to ensure the progress of science and
the useful arts. Only original expressions of those facts or ideas are
copyrightable, leaving the plaintiff in the Skyy case with an admittedly thin
copyright offering protection perhaps only from exact duplication by others. Id.;
see also SHL Imaging, Inc., 117 F. Supp. 2d at 311 (Practically, the plaintiffs
[photos] are only protected from verbatim copying.).
The teaching of Skyy I and II, then, is that the vodka bottle, because it did
not owe its origins to the photographers, had to be filtered out to determine what
copyrightable expression remained. And, by analogy though not perhaps the
one Meshwerks had in mind we hold that the unadorned images of Toyotas
vehicles cannot be copyrighted by Meshwerks and likewise must be filtered out.
To the extent that Meshwerks digital wire-frame models depict only those
unadorned vehicles, having stripped away all lighting, angle, perspective, and
other ingredients associated with an original expression, we conclude that they
have left no copyrightable matter. 7
7

The Skyy I panel also faulted the district court for analyzing the
photographs as derivative works, requiring (a) non-trivial differences between
the photos and bottle and (b) that copyright in the photo would not interfere with
Skyys ability to use its own bottle. See Skyy I, 225 F.3d at 1073. A derivative
work is based on a pre-existing copyrighted work and seeks to recast, transform,
or adapt that original work. 17 U.S.C. 101. Meshwerks argues that the
(continued...)
-15-

Confirming this conclusion as well is the peculiar place where Meshwerks

stood in the model-creation pecking order. On the one hand, Meshwerks had
nothing to do with designing the appearance of Toyotas vehicles, distinguishing
them from any other cars, trucks, or vans in the world. That expressive creation
took place before Meshwerks happened along, and was the result of work done by
Toyota and its designers; indeed, at least six of the eight vehicles at issue are still
covered by design patents belonging to Toyota and protecting the appearances of
the objects for which they are issued. See 35 U.S.C. 171; Gorham Mfg. Co. v.
White, 81 U.S. 511, 525 (1871) (It is the appearance itself, no matter by what
agency caused, that constitutes mainly, if not entirely, the contribution to the
public which the law deems worthy of recompense.). On the other hand, how the
models Meshwerks created were to be deployed in advertising including the

(...continued)
originality requirement is higher for derivative works, that the district court
erroneously applied this standard here, and that cases analyzing originality in
derivative works are generally inapposite. In our de novo review, however, we
have simply applied the Supreme Courts originality directives set out in Feist.
And it appears to us that the courts in derivative works cases, see, e.g., ATC
Distr. Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d
700, 712 (6th Cir. 2005); L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490-92
(2d Cir. 1976), just like the court in Skyy II, also had to separate out that which
owed its origin to the putative copyright holder from that which did not, holding
only the former copyrightable. In then examining the elements that are original to
the author, the originality analysis ought to be the same. Patry on Copyright
3:50 ([T]he standard of originality for derivative works is no different than for
nonderivative works.); id. 3:55 (Under the Supreme Courts Feist opinion,
there is a single test for originality applicable to all works, derivative and
nonderivative alike.).
-16-

backgrounds, lighting, angles, and colors were all matters left to those (G&W,
Saatchi, and 3D Recon) who came after Meshwerks left the scene. See infra
Section II.C. Meshwerks thus played a narrow, if pivotal, role in the process by
simply, if effectively, copying Toyotas vehicles into a digital medium so they
could be expressively manipulated by others. 8
Were we to afford copyright protection in this case, we would run aground
on one of the bedrock principles of copyright law namely, that originality, as
the term is used in copyright, means only that the work was independently created
by the author (as opposed to copied from other works). Feist, 499 U.S. at 345
(emphasis added). Because our copyright laws protect only original expression,
the reason for refusing copyright protection to copies is clear, since obviously a
copier is not a creator, much less an independent creator. Patry on Copyright
3:28; see also id. (The key is whether original matter in which protection is
claimed is the result of plaintiffs ingenuity rather than appropriation of anothers
material.). As it happens, many other courts before us have denied copyright
protection in analogous cases, involving copies of facts in the world, as well as
copies of prior works of art. So, for example, in Sparaco v. Lawler, Matusky,
Skelly, Engineers LLP, 303 F.3d 460, 467 (2d Cir. 2002), our sister circuit,
relying on Feist, denied copyright protection to that portion of an architectural
8

We are not called upon to, and do not, express any view on the
copyrightability of the work products produced by those who employed and
adorned Meshwerks models.
-17-

drawing setting forth the existing physical characteristics of the site, including
its shape and dimensions, the grade contours, and the location of existing
elements, [as] it sets forth facts; copyright does not bar the copying of such
facts. Much the same might be said here. See also ATC Distr. Group, Inc. v.
Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 712 (6th Cir. 2005)
(denying copyright protection to catalog illustrations of transmission parts
copied from photographs cut out of competitors catalogs); Bridgeman Art
Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 197 (S.D.N.Y. 1999) (denying
copyright protection to photographs that were slavish copies of public domain
works of art); Mary Campbell Wojcik, The Antithesis of Originality: Bridgeman,
Image Licensors, and the Public Domain, 30 Hastings Comm. & Ent. L. J. 257,
267 (2008) ([T]he law is becoming increasingly clear: one possesses no
copyright interest in reproductions . . . when these reproductions do nothing more
than accurately convey the underlying image.). 9

We are not convinced that the single case to which we are pointed where
copyright was awarded for a slavish copy remains good law after Feist. In Alva
Studios, Inc. v. Winninger, 177 F. Supp. 265 (S.D.N.Y. 1959), the court held that
a miniature reproduction of Rodins Hand of God was copyrightable because of
the great skill it took accurately to replicate Rodins masterpiece. Feist, however,
rejected the notion that skill and hard work suffice for copyright protection, 499
U.S. at 359-60, undermining the very foundation for the holding in Alva Studios.
See Patry on Copyright 3:56 (Alva appears to have protected laboralbeit
labor by a skilled artisanbut still only labor, not judgment. Alva is inconsistent
with the Supreme Courts opinion in Feist.).
-18-

It is certainly true that what Meshwerks accomplished was a peculiar kind

of copying. It did not seek to recreate Toyota vehicles outright steel, rubber,
and all; instead, it sought to depict Toyotas three-dimensional physical objects in
a two-dimensional digital medium. But we hold, as many before us have already
suggested, that, standing alone, [t]he fact that a work in one medium has been
copied from a work in another medium does not render it any the less a copy.
Nimmer on Copyright 8.01[B]; see also Durham Indus., Inc. v. Tomy Corp., 630
F.2d 905, 910 (2d Cir. 1980) (holding that the mere reproduction of the Disney
characters in plastic . . . does not constitute originality as this Court has defined
the term); Entmt Research Group, Inc. v. Genesis Creative Group, Inc., 122
F.3d 1211, 1221-24 (9th Cir. 1997) (denying copyright protection to 3-D
costumes based on 2-D cartoon characters). After all, the putative creator who
merely shifts the medium in which anothers creation is expressed has not
necessarily added anything beyond the expression contained in the original. See
Bridgeman Art Library, Ltd., 36 F. Supp. 2d at 199 (noting that a copy in a new
medium is copyrightable only where, as often but not always is the case, the
copier makes some identifiable original contribution). 10
10

The single case Meshwerks cites to us as suggesting that a medium shift

alone is sufficient to warrant copyright protection does not alter our conclusion on
this score. There, a series of three-dimensional works of art translated from twodimensional sketches were held copyrightable based on the artists creative
effort. W. Goebel Porzellanfabrik v. Action Indus., Inc., 589 F. Supp. 763, 767
(S.D.N.Y. 1984). This case pre-dated Feist, and it is unclear whether it remains
(continued...)
-19-

In reaching this conclusion, we do not for a moment seek to downplay the

considerable amount of time, effort, and skill that went into making Meshwerks
digital wire-frame models. But, in assessing the originality of a work for which
copyright protection is sought, we look only at the final product, not the process,
and the fact that intensive, skillful, and even creative labor is invested in the
process of creating a product does not guarantee its copyrightability. See Feist,
499 U.S. at 359-60; Howard B. Abrams, Law of Copyright 2:8 (Even if the
process is both expensive and intricate, an exact or near-exact duplicate of an
original should not qualify for copyright.) (emphasis added); Wojcik, supra, 30
Hastings Comm. & Ent. L. J. at 267 (This is not to say that [accurately
reproducing an underlying image] requires no skill or effort; it simply means that
such skill and effort does not suffice to invoke the highly advantageous legal
monopoly granted under the Copyright Act.). In the case before us, there is no
doubt that transposing the physical appearances of Toyotas vehicles from three
dimensions to two, such that computer-screen images accurately reflect Toyotas
products, was labor intensive and required a great amount of skill. But because
10

(...continued)
good law. In Feist, the Supreme Court specifically eschewed the notion that
effort alone was enough to make the resultant work original and therefore the
proper subject of copyright protection. See Feist, 499 U.S. at 359-60; see also
supra note 9. Moreover, and as discussed in greater detail below, creative
decision-making in the process is insufficient to render the product original. Cf.
Nimmer on Copyright 3.03[C][2] (stating that a district court erred in another
case in holding that the mere act of converting a public domain Santa Claus
figure into a three-dimensional plastic form constituted sufficient originality).
-20-

the end-results were unadorned images of Toyotas vehicles, the appearances of

which do not owe their origins to Meshwerks, we are unable to reward that skill,
effort, and labor with copyright protection.
2
Meshwerks intent in making its wire-frame models provides additional
support for our conclusion. In theory, the originality requirement tests the
putative authors state of mind: Did he have an earlier work in mind when he
created his own? Paul Goldstein, Goldstein on Copyright 2.2.1.1. If an artist
affirmatively sets out to be unoriginal to make a copy of someone elses
creation, rather than to create an original work it is far more likely that the
resultant product will, in fact, be unoriginal. See Russ VerSteeg, Intent,
Originality, Creativity and Joint Authorship, 68 Brook. L. Rev. 123, 133 (2002)
([A] persons intent to copy . . . should be considered strong evidence that what
that person has produced is not copyrightable.). Of course, this is not to say that
the accidental or spontaneous artist will be denied copyright protection for not
intending to produce art; it is only to say that authorial intent sometimes can shed
light on the question of whether a particular work qualifies as an independent
creation or only a copy.
In this case, the undisputed evidence before us leaves no question that
Meshwerks set out to copy Toyotas vehicles, rather than to create, or even to
add, any original expression. The purchase order signed by G&W asked
-21-

Meshwerks to digitize and model Toyotas vehicles, and Meshwerks invoice

submitted to G&W for payment reflects that this is exactly the service Meshwerks
performed. Aplts App. at 113, 115. Meshwerks itself has consistently described
digitization and modeling as an attempt accurately to depict real-world, threedimensional objects as digital images viewable on a computer screen. See, e.g.,
id. at 369 (the graphic sculptor is not intending to redesign the product, he or
she is attempting to depict that object in the most realistic way); id. at 370 (goal
is to create a realistic depiction on the computer screen); id. at 378
(Meshwerks graphic sculptors [] create realistic-looking depictions of
complicated real-world objects on a two dimensional screen . . . a digital
representation of the real object); id. at 455 (Meshwerks basically draws a three
dimensional rendering of that object in the computer . . . it closely resembles the
original). The parties thus intended to have Meshwerks create base-layer digital
models to which the original and creative elements viewers would see in actual
advertisements could be added by others in subsequent processes.
Other courts before us have examined and relied on a putative copyright
holders intent in holding that the resultant work was not original and thus subject
to copyright protection. The Sixth Circuit, for example, held that a series of
catalog illustrations depicting auto transmission parts were not independently
copyrightable. ATC Distrib. Group, Inc, 402 F.3d at 712. The drawings had been
copied by hand from photographs in a competitors catalog. Id. In denying
-22-

copyright protection, the court emphasized that [t]he illustrations were intended
to be as accurate as possible in reproducing the parts shown in the photographs on
which they were based, a form of slavish copying that is the antithesis of
originality. Id. (emphasis added). In Bridgeman Art Library, the court
examined whether color transparencies of public domain works of art were
sufficiently original for copyright protection, ultimately holding that, as exact
photographic copies of public domain works of art, they were not. 36 F. Supp.
2d at 195. In support of its holding, the court looked to the plaintiffs intent in
creating the transparencies: where the point of the exercise was to reproduce the
underlying works with absolute fidelity, the spark of originality necessary for
copyright protection was absent. Id. at 197 (emphasis added). Precisely the same
holds true here, where, by design, all that was left in Meshwerks digital wireframe models were the designs of Toyotas vehicles.
C
Although we hold that Meshwerks digital, wire-frame models are
insufficiently original to warrant copyright protection, we do not turn a blind eye
to the fact that digital imaging is a relatively new and evolving technology and
that Congress extended copyright protection to original works of authorship
fixed in any tangible medium of expression, now known or later developed. 17
U.S.C. 102(a) (emphasis added). A Luddite might make the mistake of
suggesting that digital modeling, as was once said of photography, allows for
-23-

nothing more than mechanical reproduction of the physical features or outlines

of some object . . . and involves no originality of thought or any novelty in the
intellectual operation connected with its visible reproduction in [the] shape of a
picture. Burrow-Giles, 111 U.S. at 59. Clearly, this is not so.
Digital modeling can be, surely is being, and no doubt increasingly will be
used to create copyrightable expressions. Yet, just as photographs can be, but are
not per se, copyrightable, the same holds true for digital models. Theres little
question that digital models can be devised of Toyota cars with copyrightable
features, whether by virtue of unique shading, lighting, angle, background scene,
or other choices. The problem for Meshwerks in this particular case is simply
that the uncontested facts reveal that it wasnt involved in any such process, and
indeed contracted to provide completely unadorned digital replicas of Toyota
vehicles in a two-dimensional space. For this reason, we do not envision any
chilling effect on creative expression based on our holding today, and instead
see it as applying to digital modeling the same legal principles that have come, in
the fullness of time and with an enlightened eye, to apply to photographs and
other media. 11
11

Defendants request for the costs and attorneys fees associated with this
appeal is denied. See 17 U.S.C. 505 (allowing reasonable fees and costs at the
courts discretion). Non-exclusive factors that may guide a courts exercise of its
discretion include the frivolousness, motivation, objective unreasonableness
(both in the factual and in the legal components of the case) and the need in
particular circumstances to advance considerations of compensation and
(continued...)
-24-

***
Originality is the sine qua non of copyright. If the basic design reflected in
a work of art does not owe its origin to the putative copyright holder, then that
person must add something original to that design, and then only the original
addition may be copyrighted. In this case, Meshwerks copied Toyotas designs in
creating digital, wire-frame models of Toyotas vehicles. But the models reflect,
that is, express, no more than the depiction of the vehicles as vehicles. The
designs of the vehicles, however, owe their origins to Toyota, not to Meshwerks,
and so we are unable to reward Meshwerks digital wire-frame models, no doubt
the product of significant labor, skill, and judgment, with copyright protection.
The judgment of the district court is affirmed, and defendants request for
attorneys fees is denied.
So ordered .

11

(...continued)
deterrence. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994). Far from
being frivolous, this suit presents a novel and consequential question focused on
the copyrightability of images in a relatively new technological medium. Neither
are we presented with evidence suggesting that Meshwerks motivation in filing
this suit was anything other than sincere.
-25-

APPENDIX A
06-4222, Meshwerks v. Toyota

-26-

APPENDIX B
06-4222, Meshwerks v. Toyota

-27-